I oppose section 2, which is set out as follows:
Section 3 of the Act of 1972 is amended by—
(a) the substitution of the following subsection for subsection (3):
"(3) Regulations under this section may—
(a) make provision for offences under the regulations to be prosecuted on indictment where the Minister of the Government making the regulations considers it necessary for the purpose of giving full effect to a provision of the treaties governing the European Communities or an act adopted by an institution of those Communities, and
(b) make such provision as that Minister of the Government considers necessary for the purpose of ensuring that penalties in respect of an offence prosecuted in that manner are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions of which the offence consists, provided that the maximum fine (if any) shall not be greater than €500,000 and the maximum term of imprisonment (if any) shall not be greater than 3 years.”,
(b) the insertion of the following subsection:
"(5) In this section—
‘maximum fine' means the maximum fine to which a person shall be liable on conviction on indictment of an offence;
‘maximum term of imprisonment' means the maximum term of imprisonment to which a person shall be liable on conviction on indictment of an offence.".
I strenuously opposed this Bill in its entirety on Second Stage. My opposition grows stronger every day but I chose not to table any Committee Stage amendments because this is a Bill that cannot be improved by amendment. The only way to improve it is to throw it out altogether and begin considering anew the issues it raises. I did not receive an adequate response when I made this proposal last week.
In his speech last week, the Minister of State, Deputy Treacy, acknowledged that the driving force behind the Bill are two recent Supreme Court judgments which called into question the legality of the way in which some European legislation was transposed into Irish law over the years. The Supreme Court effectively decided that for all these years, the Executive exceeded its powers under the Constitution. It usurped the powers of both Houses of the Oireachtas and consistently abrogated to itself powers that rightfully belong to those Houses.
It is interesting to note the inevitable reaction of the Executive to being caught out like this. The Government contends that the Supreme Court, in its usual technical and excessively fussy way, merely accused the State of failing to dot the i's and cross the t's. This means we must pass a new law giving the State the powers which the Supreme Court says we do not have but which we believed we did. In other words, the Government's way of fixing a wrongdoing on its part is to make it legal, not only for the future but also retrospectively by validating all the wrongful actions of the past.
The Government did not for a moment consider the stance it should have taken, which is to acknowledge that the Supreme Court caught it out in exceeding its powers and that it must be careful not to make the same mistake in future. This is the line that should have been taken but it is not a great surprise that it was not. Whenever the Executive makes a decision, it is invariably because it suits it rather than that it answers the wider need. It is for us, as part of the Legislature, to resist this approach all the way.
This section is perhaps the most regrettable element of the Bill because it abrogates to the Executive the power to create indictable offences by ministerial edict. This shows up at its starkest the fundamental weakness of the entire project before us. It may seem elementary to remind ourselves of the basic fact that the reason we have a Legislature is to make law which the Government then implements. This is a clear division of powers. In practice, because the Government dominates the Legislature, it alone has the power to make laws as it wishes. Bypassing the Legislature is a very different matter and should be resisted every time it is proposed. On Second Stage, I spoke at some length as to why this important Bill is fundamentally bad legislation. As we consider this section, it might be worthwhile to revisit some of what I said on Second Stage. I hope Members have thought further about the important issues at stake.
What is not at stake is the value of our EU membership or that Ireland has benefited hugely from it. I am well aware of the negotiating principle of when in doubt, bang the table. The Minister's equivalent is when his argument is weak, play the EU trumpet. There is no difference between me and the Minister in our fundamental enthusiasm for the EU or in the determination that Ireland should live up fully to its responsibilities and obligations of membership. I part company with the Minister on the respective roles that should be played by the EU, national governments and legislatures.
It is commonly accepted that one of the EU's fundamental problems is its perceived distance from its citizens. This is not just an image problem with practical consequences. With more of our lives dominated by matters at EU level, it is important that people feel personally involved with the institutions and they are interested enough to monitor the EU's day-to-day decision-making processes.
There are many obstacles to making this a reality. One is the relative influence on the EU decision-making process exercised by officials rather than by politicians who have a mandate. I refer not just to the Brussels bureaucracy which I described on Second Stage as the most maligned civil service in history — the Official Report quoted me as saying "most malign civil service", the fault for which was probably in my diction or perhaps it was a Freudian slip on somebody's part — but also to the part played by Irish officials in the day-to-day interface between the individual member states and the European Commission. Much of the decision making on EU affairs is taken by and between officials, with politicians coming in at the last minute to rubber stamp and add some finesse to the decision. I refer to the bread and butter EU decisions rather than the headline issues aired at EU summits.
Added to this, the European Commission has the sole right of initiating EU legislation. There is already a system that is overbalanced in favour of officials to the detriment of an input from those who have been elected. Against this, there are several valuable safeguards. We must resist having them diluted as this section seeks to do.
The most important safeguard involves the role of national parliaments. These are closer to the people of their countries than a bureaucracy based in another country. In the soul searching carried out following the rejection of the first Nice treaty, the Oireachtas adopted a raft of measures to increase scrutiny of European legislation that was until then passing into our law unnoticed. In the discussions which gave rise to the EU constitution, a prime consideration was increasing and deepening the role of national parliaments in the overall European process. This section flies in the face of this. It is possible to argue that it provides for efficiency by replacing primary legislation with the simpler process of a statutory instrument in the form of a ministerial order. I argue against these provisions on the grounds of openness and transparency. We must increase rather than dilute the amount of EU business that is carried out in the full light of day. Ministerial orders, in practice, are invisible.